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The Supreme Court Has Teed Up a Radical Reimagining of LGBTQ Rights

By taking a flier on a plaintiff whose First Amendment rights have only been hypothetically violated, the high court may avoid having to consider the rights of those who might face anti-gay discrimination.

A man waves a rainbow flag outside the Supreme Court.
Chip Somodevilla/Getty Images

The Supreme Court announced on Tuesday that it would take up a case involving a Christian web designer who claims that Colorado’s anti-discrimination law prevents her from denying her services to same-sex couples. At first glance, 303 Creative v. Elenis appears to be the latest effort to get the justices to decide whether religious freedom claims can trump civil rights laws that protect gay and transgender Americans from discrimination by private businesses. But it’s actually a much stranger case than that—and potentially even more consequential.

The plaintiff, Lorie Smith, is a Colorado-based artist who started her own web-design firm named 303 Creative. She designs websites for churches, small businesses, and conservative elected officials. In her petition, Smith told the justices that she “seeks to bring glory to God by creating [a] unique expression that shares her religious beliefs, including her faith’s view that marriage is between one man and woman, and she cannot create messages inconsistent with her Christian faith.”

To that end, Smith told the court that she is willing to work with clients of any background, including LGBTQ clients, so long as the final product does not conflict with her values. She refuses to “promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion, or same-sex marriage” through her work. Smith argued that the Colorado Anti-Discrimination Act, or CADA, prevents her from publicly posting that stance on her own website when it comes to designing wedding websites. Under CADA, a Colorado business can’t “directly or indirectly deny” to anyone “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation” on the basis of certain characteristics, one of which is sexual orientation.

At first glance, the case strongly resembles the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. That dispute also revolved around a clash between Colorado’s anti-discrimination law, a business owner’s religious beliefs, and a customer’s sexual orientation: The state civil rights commission had sanctioned a Christian baker who declined to bake a cake for a same-sex couple. In its eventual ruling, however, the Supreme Court avoided the underlying clash between LGBTQ rights and religious freedom claims by ruling that the commission hadn’t given the baker a fair, neutral consideration.

But there are also some notable distinctions between the two disputes. For one, the Masterpiece Cakeshop case arose after the baker had directly denied service to a particular same-sex couple. Smith, on the other hand, preemptively sued the commission to get a court to block it from enforcing the act against her. “[303 Creative] filed its complaint despite failing to identify any investigation into the company’s conduct or any complaint filed against the company,” the state of Colorado told the court. “And no actual customer has requested the company to design any specific wedding website. Rather, the company sued seeking a broad declaration that the act violates the company’s free speech and free exercise rights under the First Amendment.”

A federal district court in Colorado ruled in favor of the commission in Smith’s case, concluding that the CADA does not violate the First Amendment’s Free Speech or Free Exercise Clauses. The Tenth Circuit Court of Appeals upheld that ruling last July. “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Mary Beck Briscoe wrote for the court.

In a dissenting opinion, Judge Timothy Tymkovich opened with a quote from George Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” He framed Smith’s plight as a case of government censorship. “Though I am loathe to reference Orwell, the majority’s opinion endorses substantial government interference in matters of speech, religion, and conscience,” he wrote. “Indeed, this case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and antidiscrimination laws’ restrictions of religious-based speech in the marketplace on the other. It seems we have moved from ‘live and let live’ to ‘you can’t say that.’”

The insinuations that Smith was the victim of oppression did not stop there. Tymkovich made repeated allusions to the genuineness of Smith’s religious beliefs, making an implicit argument that the majority felt the need to refute explicitly. “We fail to see how [Smith’s] sincerity or good faith should excuse them from CADA,” Briscoe wrote. “[Smith’s] intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services. For this reason, it is unclear to us why the dissent places such repeated emphasis on [Smith’s] ‘good faith.’”

In one sense, this is a case about nothing. Unlike the baker in Masterpiece Cakeshop, Smith has suffered no penalties, faced no sanctions, and experienced no disruption of business except for purely hypothetical ones. The Tenth Circuit majority noted that Smith and 303 Creative “have not yet offered wedding-related services, or published the Proposed Statement, because they are unwilling to violate CADA.” Any injury that the Supreme Court could try to remedy would be purely speculative.

The Seinfeld-esque nature of this case also makes it a perfect vehicle for the Supreme Court’s six conservative justices. In previous LGBTQ rights cases, there was always one pesky problem for the court’s conservative members: There was a gay person or couple who just wanted to be treated like anyone else. Until recently, there was a majority of justices on the court who were willing to read the Constitution to protect their rights and dignity. But the last four years have likely produced a court that will be far more hostile to their interests, especially if they aren’t actually a party to the case.

Indeed, while Smith’s harms are speculative, a Supreme Court ruling in her favor could have very real consequences for gay and transgender Americans. Anti-discrimination laws help ensure that Americans can shop at the same stores, use the same services, and participate in everyday life to the same degree as everyone else, no matter their differences. Carving out a broad exception to those protections could relegate gay and transgender Americans to a second-class status of sorts in parts of this country. It is quite a leap to suggest, as Tymkovich does, that this would strengthen American pluralism instead of weakening it.

Perhaps most ominously, the Supreme Court appears to be queuing up a much broader look at this issue than it had in Masterpiece Cakeshop. That dispute rested squarely on the religious freedom dimensions of the case. When Smith first launched her case, this was the aspect on which she largely focused. But the justices tinkered with the question that she asked them to resolve when it agreed to hear her case on Tuesday. Her original petition asked the court to decide “whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.”

In its Tuesday orders, the justices said they would take up the case only to decide “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” Why the change? The court appeared to jettison the Free Exercise Clause question to avoid resolving the second part of Smith’s request, which had asked them to revisit Employment Division v. Smith. The justices declined to overturn that precedent as recently as last year in Fulton v. City of Philadelphia, and they appear to have no appetite to revisit it so soon. At the same time, the free-speech-only focus means the case could affect anti-discrimination laws far beyond the nexus of LGBTQ rights and religious freedom. How far the justices could go will become clearer when they hold oral arguments next fall.